State v. Spencer

663 So. 2d 271, 1995 WL 579691
CourtLouisiana Court of Appeal
DecidedOctober 4, 1995
DocketCR95-208, CR95-328
StatusPublished
Cited by15 cases

This text of 663 So. 2d 271 (State v. Spencer) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Spencer, 663 So. 2d 271, 1995 WL 579691 (La. Ct. App. 1995).

Opinion

663 So.2d 271 (1995)

STATE of Louisiana
v.
Dwight SPENCER.

Nos. CR95-208, CR95-328.

Court of Appeal of Louisiana, Third Circuit.

October 4, 1995.

*272 Bernard E. Boudreaux, Jr., Dist. Atty., Ralph Kenneth Lee, Jr., New Iberia, for Plaintiff-Appellee State of Louisiana.

Gary F. LeGros, Jr., Jeanerette, for Defendant-Appellant Dwight James Spencer.

*273 Before SAUNDERS, SULLIVAN and KNIGHT[*], JJ.

SULLIVAN, Judge.

The defendant, Dwight Spencer, was charged by bill of information with aggravated burglary in violation of La.R.S. 14:60 and aggravated oral sexual battery in violation of La.R.S. 14:43.4. The charges were severed, with the defendant's burglary trial beginning on July 26, 1994. At the conclusion of the trial, a twelve member jury unanimously found the defendant guilty. On August 9, 1994, the defendant was sentenced to thirty (30) years at hard labor. On October 31, 1994, the defendant was convicted as a habitual felony offender, third offense, and sentenced to sixty (60) years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, the defendant asserts eight assignments of error, three of which have been abandoned.

FACTS

During the daylight hours of November 12, 1993, eighteen-year-old Jeanne LaSalle returned to her New Iberia home, where she interrupted a burglary in progress. The intruder forced her to perform manual and oral sex on him, then fled with several pieces of jewelry taken from the residence and from LaSalle's person.

During the subsequent investigation, the police recovered a partial fingerprint from a glass jewelry box and semen samples on the victim's shirt and on a toy car in the room where the attack occurred. The victim identified the defendant, Dwight Spencer, as her attacker in a photographic lineup, and expert testimony linked the defendant to the fingerprint and semen samples recovered from the crime scene.

LINE-UP IDENTIFICATION

By this assignment, the defendant alleges that the victim's identification of him in a photographic line-up was unduly suggestive and that the DNA evidence connecting him to the crime was the direct result of this improper identification.

The defendant points out that the victim initially failed to recognize a photograph of him, taken when he was younger, out of approximately 100 mug shots. Four days later, when the victim viewed six (6) more photographs, she recognized more recent pictures of the defendant. The defendant also points out that the victim initially described her attacker as being five feet, eleven inches tall, whereas he is only five feet, eight inches tall.

A defendant seeking to suppress an identification has the burden of proving that the identification was suggestive and that the procedure used created the likelihood of misidentification. State v. Romero, 552 So.2d 45 (La.App. 3 Cir.1989), writ denied, 559 So.2d 137 (La.1990).

After reviewing the record, we find that the defendant has not met this burden. Both the victim and the investigator, Detective Kerry LeBlanc, testified that no suggestions were made to the victim during either line-up identification and that the defendant's pictures were not singled out. The photograph in the original line-up did not reflect the defendant's true appearance at the time of the crime, and the three inch mistake in the victim's description of her attacker's height is understandable, considering the circumstances of the encounter. We find no merit in this assignment of error.

FINGERPRINT EVIDENCE

The defendant next argues that the trial court erred in allowing the introduction of fingerprint evidence because a continuous chain of custody was not established. The defendant shows that the only latent print taken from the crime scene remained in Detective LeBlanc's file for approximately eight months before it was sent to the crime lab for identification.

It is well settled that a continuous chain of custody need not be established if the evidence as a whole shows, more probably than not, that the object introduced at trial is the same as the object originally *274 seized, and any defects in the "chain" go to weight, not admissibility. State v. Guillory, 438 So.2d 1256 (La.App. 3 Cir.1983).

Detective LeBlanc testified that he recovered a fingerprint from a beveled-top glass jewelry box in the victim's home. At the time, he apparently thought the print was too smudged to be used for comparison purposes. When the print was lifted with scotch tape, it retained the beveled design from the jewelry box. Detective LeBlanc kept the print in his case file, and shortly before trial, sent it to Sergeant Bill Delahoussaye of the Lafayette Metro Crime Scene Unit for identification. At trial, Sergeant Delahoussaye testified that the latent print on the scotch tape contained at least twenty points of comparison with the known fingerprint of the defendant.

From the facts adduced at trial, we find it more probable than not that the fingerprint used for analysis was the same one lifted at the crime scene. The latent print kept in Detective LeBlanc's case file retained the beveled markings and smudges it had when it was first lifted. Although the file was not locked and other detectives had access to it, the file was not accessible to the general public. Furthermore, any defect in the chain of custody goes to the weight of the evidence and not its admissibility; the factfinder properly determined what weight, if any, was to be given this evidence.

This assignment lacks merit.

DNA EVIDENCE

The defendant next argues that the DNA test results should not have been admitted into evidence because no safeguards have been promulgated to insure the accuracy of the particular genetic test used in this case.

Dr. Sudhir K. Sinha, the director of GenTest Laboratories, Inc. in Metairie, Louisiana, testified that the newer polymerase chain reaction (PCR) test was performed in this case rather than the slightly older restriction fragment length polymorphism (RFLP) method. Dr. Sinha explained that the PCR test is used when there is not enough DNA material to perform the RFLP test. The RFLP test has been widely used since 1984, whereas the PCR test has been available since 1989, but only recently has been used nationally.

La.R.S. 15:441.1 states:

Evidence of deoxyribonucleic acid profiles, genetic markers of the blood, and secretor status of the saliva offered to establish the identity of the offender of any crime is relevant as proof in conformity with the Louisiana Code of Evidence.

Defendant relies on State v. Rowell, 517 So.2d 799 (La.1988) to argue that because the PCR method was not widely used when the above statute was passed, this testing was not contemplated by the statute's authors. Such test results, the defendant argues, are therefore irrelevant because of their inherent unreliability. We are not persuaded by defendant's reliance on Rowell.

In Rowell, the supreme court held that regulations promulgated by the state regarding gas chromatography, or the chemical analysis of blood, did not sufficiently insure the test's integrity and reliability. This holding was based in part on the highly prejudicial effect of the wrongful introduction of the test results and on the statutory presumption of intoxication that applies to a certain test result. La.R.S. 32:662 A(1)(c).

La.R.S. 15:441.1, in contrast, attaches no legal presumption to a particular DNA test result. The statute only states a general policy that such evidence is relevant.

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Cite This Page — Counsel Stack

Bluebook (online)
663 So. 2d 271, 1995 WL 579691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spencer-lactapp-1995.